Karnataka High Court
A. Krishnappa vs Thimmarayappa (Deceased) By L.Rs And ... on 10 July, 2001
Equivalent citations: AIR2001KANT470, 2001(6)KARLJ456, AIR 2001 KARNATAKA 470, 2001 AIR - KANT. H. C. R. 2697, (2002) 1 ICC 70, (2002) 1 CIVILCOURTC 256, (2002) 2 RECCIVR 132, (2001) 6 KANT LJ 456
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT
1. The appeal filed against the judgment and decree of the XIV Additional City Civil Judge, Bangalore, in O.S. No. 887 of 1987. The appellant is the defendant in the suit. The plaintiff filed suit for recovery of possession of the suit property consisting of 'A' and 'B' schedule properties. According to the plaintiff, the suit property belonged to one Thimma Bovi and was sold to one Muniswamappa under registered sale deed in the year 1969. In turn Muniswamappa sold the suit property to the plaintiff under registered sale deed dated 21-7-1969. The defendant and his elder brother, Muniswamy were assisting the plaintiff in their business, therefore, they were permitted to put up a ehed and live in 'A' schedule property for some time. Later on when the constructions were taken up, the defendant was asked to vacate. There was a dispute. It is said that the heirs of Thimma Bovi set up the defendant and made him to file suits to claim right in the property and that the defendant has illegally encroached and residing in 'B' schedule property since the year 1986. Therefore, in respect of the said property, the relief of possession is sought.
2. The first plaintiff is the owner of the suit property. The 2nd plaintiff is the purchaser of the property from the first plaintiff and yet to obtain the registered sale deed from him. However, both of them are jointly litigating the case. The defendant on the other hand, contended before the Trial Court that Thimma Bovi bequeathed the suit property in favour of his mother under a Will and also sets up a plea of adverse possession. The suit has a history of chequered litigation. The plaintiffs suit came to be dismissed. Being aggrieved, an appeal was filed in R.F.A. No. 504 of 1995. This Court found that despite the finding by the Trial Court, on the question of title in favour of the plaintiff, dismissal of suit was held to be bad in law. The defendant had filed cross-objections contending that he was unable to adduce his defence evidence on account of illness. Taking the submissions of the defendant into consideration, the matter was remanded to enable the defendant to adduce evidence. The plaintiff was also permitted to adduce rebuttal evidence. Pursuant to the remand, the impugned judgment came to be passed decreeing the suit. Being aggrieved, the appeal is filed.
3. On the question of Will, the Trial Court finds that the Will is not proved and the attesting witnesses are not examined. It was the contention of the defendant before the Trial Court in the written statement that Thimma Bovi had conveyed the property under an unregistered gift in favour of his mother in the year 1993 and from his mother he has inherited the property by a Will dated 28-12-1968. The said transactions are held to be not proved by the Trial Court. However, in the suit, the defendant himself examined partly in examination-in-chief and thereafter he did not turn up for further evidence. Under the circumstances, the Trial Court closed the evidence of the defendant and after hearing the argument, pronounced the impugned judgment.
4. On the plea of adverse possession, reflected in Issue No. 4, the Court takes the view that the defendant having not admitted the plaintiffs title to the 'B' schedule property is not entitled to raise the plea of adverse possession, although, explicitly not referred to the ruling of this Court, however, in Prakash R. and Anr. v. G.P. Marthamma, it is held in thus:
"In fact, the defendant began to claim title by adverse possession. Without admitting the title of the plaintiff, how they are entitled to raise the question of adverse possession is not known to law. One of the contentions raised is that the plaintiff is bound to execute the gift deed in favour of the defendants".
The Trial Court also held that the defendant having set up the claim for title on the strength of a Will and gift deed is not entitled to take the plea of adverse possession, although explicitly not referred to the ruling of this Court, however in Danappa Revappa Kolli v. Gurupadappa Mallappa Pattanashetti, it is held thus:
"Apart from actual and continuous possession which are among other ingredients of adverse possession there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bona fide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession".
5. The Counsel for the appellant, relied on the ruling of Division Bench of this Court in Karnataka Wakf Board, Bangalore v. State of Karnataka and Ors., wherein this Court has held thus:
"The plaintiff has taken up an alternative plea that it has perfected its title to the suit property by adverse possession also. It is well-settled that the plaintiff can take an alternative plea. The plea regarding the title and the plea of adverse possession pleaded by the plaintiff in this case, cannot be said to be inconsistent with one another. Since the defendants have been putting forward a claim to the suit property since ancient times, the possession of the plaintiff is necessarily hostile to the claim of title made by the defendants and is to their knowledge. The period of plaintiffs possession being well over the statutory period under Article 64 of the Limitation Act, 1963, the learned Trial Judge has rightly held that the plaintiff has established its title to the suit property by adverse possession".
6. In view of the ruling of the Division Bench of this Court, it is well-within the right of the party in a suit to set up title on one part and also can take up plea of adverse possession in alternative. Both the pleas are held to be alternative and permissible. In view of the law laid down by the Division Bench, the law laid down in Danappa Revappa Kolli's case, supra, by the learned Single Judge is no longer good law and so also the law laid down in Prakash's case, supra, being contrary to the Division Bench decision is not a good law. Therefore, it was improper on the part of the Trial Court in holding that the defendant was not entitled to take up plea of adverse possession and thus, the rejection of the plea at the threshold without scrutiny of the evidence was improper. Thus the finding on Issue No. 4 is erroneous.
7. The Counsel for the appellant submitted that the appellant is a victim of strange mental illness with the symptoms of being indifferent and unattentive to the facts and circumstances and that he would keep himself away from the house for a couple of days. In support of the said submissions, the medical records are produced. It is not a case that the appellant is a lunatic. However, in view of the strange mental and physical behaviour, it is said that the defendant could not conduct his defence effectively and that his absence is also not on account of any mala fides or deliberate laches.
8. After perusal of the medical certificates, it cannot be said that the version of the appellant's mental condition is baseless and unfounded. May be clinching material is not produced, nonetheless, the material produced indicates that he is suffering from some sort of mental illness. In that view of the matter, I find that it is a fit case where the finding on Issue No. 4 recorded by the Trial Court is to be set aside. Issue No. 4 involves mixed question of law and fact. It requires reception of evidence and a decision be rendered on the basis of the oral and documentary evidence adduced. Therefore, the finding on Issue No. 4, is set aside and the matter is remanded to the Trial Court for a limited extent of giving finding on Issue No. 4 in accordance with law and if necessary at the request of the defendant he may be permitted to adduce evidence so also the plaintiff be permitted to cross-examine and adduce rebuttal evidence.
9. The Counsel for the respondent submitted that the defendant is indulging in dilatory tactics and he would not co-operate in concluding the evidence. However, to allay the apprehensions and to bring about seriousness in the attitude of the defendant, I feel it necessary that a time frame is to be fixed for concluding the evidence. Therefore, the Trial Court is directed to conclude the evidence by the end of August 2001 and to return the records with finding on Issue No. 4,
10. The parties are directed to appear before the Trial Court on 17-7-2001 for further progress in the matter. The Trial Court records be sent immediately.